majority">Perkins, J.

Trial of the right of property.

Ephraim S. Wolfe filed with a justice of the peace a claim to a two-horse wagon which had been taken by a constable on an execution in favor of D. J. Wolfe, administrator upon the estate of Jacob Wolfe, deceased, against John Farmer and John Hay. The claim was filed, on the 13th of November, 1849.

The cause went by appeal to the Circuit Court. Judgment there for the plaintiff, and a motion for a new trial overruled.

turned June 20th of the same year, with an inc that said wagon was not sold for want of a bu; plaintiff purchased the wagon of one of the t defendants in the fall of 1848. On the 7th 1849, a new fi. fa., instead of a vendi., issued to the same constable, upon the same judgment, which he levied on said wagon, and, on the 23d of the said month, returned with the indorsement that said wagon remained unsold for want of a buyer. The evidence is upon the record, and show execution issued and was levied upon said wagon in May, 1848, and that said executioi

During the existence of the first execution, and subsequently, the return-day of an execution was at the end of a year from its issue; and it is enacted in the R. S. of 1843, p. 750, that when an execution is levied upon pro*256perty and returned with an indorsement that said property is not sold for want of bidders, “such levy and return shall continue and constitute a lien on the property remaining unsold, by virtue of which the same may be held and sold on a writ of venditioni exponas, if issued before the return-day next after the return-day of such previous executions.”

S. B. Gookins, for the plaintiff.J. P. Usher, for the defendant,

The fi. fa. first levied on the wagon in question was issued in May, 1848, and its return-day was, therefore, in May, 1849. The return-day of an execution next after that would be in May, 1850. Till that time, as we understand the statute, the lien of the first execution continued, and the property remained liable to be sold on a vendi. issued before that time.

The claim in this case was filed in November, 1849, while the property was held by the execution, and hence, could not be sustained.

The second fi. fa. was irregular, but. it would not prevent the issue of a vendi. on the return to the first, at any time before May, 1850.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

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